Citation Nr: 9818813
Decision Date: 06/18/98 Archive Date: 06/23/98
DOCKET NO. 95-17 763A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cheyenne,
Wyoming
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
C. A. Kersten, Associate Counsel
INTRODUCTION
The veteran served on active duty from June 1967 to June
1970. Service in Vietnam is indicated by the evidence of
record.
This matter comes to the Board of Veterans’ Appeals (Board)
on appeal from a January 1996 Department of Veterans Affairs
(VA) Regional Office (RO) rating decision.
The Board notes that the veteran also submitted an appeal of
the RO’s determination denying entitlement to non service-
connected pension benefits. He withdrew his appeal as to
that issue during a June 1997 personal hearing at the RO, and
the Board will not address it further.
REMAND
The veteran seeks entitlement to service connection for PTSD.
In essence, he contends that his experiences during his 27
months of service in Vietnam, including his duty at
observation posts with his engineering unit, his experiences
as a temporary door-gunner on his cousin’s helicopter, and
being exposed to rocket and mortar attacks while near Da
Nang, led to PTSD.
The Board notes that a recent case from the Court of Veterans
Appeals (Court), Cohen v. Brown, 10 Vet. App. 128 (1997),
decided during the pendency of this appeal, alters the
analysis in connection with claims for service connection for
PTSD. The Court in Cohen pointed out that the VA has adopted
the fourth edition of the American Psychiatric Association's
Diagnostic and Statistical Manual for Mental Disorders (DSM-
IV) in amending 38 C.F.R. §§ 4.125 & 4.126 effective in
November 1996. See 61 Fed. Reg. 52695-52702 (1996). The
Court took judicial notice of the effect of the shift in
diagnostic criteria. The major effect is this: the criteria
have changed from an objective (“would evoke ... in almost
anyone”) standard in assessing whether a stressor is
sufficient to trigger PTSD, to a subjective standard. The
current criteria now require exposure to a traumatic event
and response involving intense fear, helplessness, or horror,
which is significantly more subjective, and takes into
account the reaction of the individual in question. The
sufficiency of a stressor is accordingly, now a clinical
determination for the examining mental health professional.
It appears that the regulatory amendments to 38 C.F.R. §§
4.125 & 4.126, and the incorporation of DSM-IV, have a
potentially liberalizing effect in adjudicating claim for
service connection for PTSD, particularly when an individual
is not a combat veteran or who is not shown to have “engaged
in combat with the enemy.” Where the law or regulations
change while a case is pending, the version most favorable to
the claimant applies, absent congressional intent to the
contrary. Karnas v. Derwinski, 1 Vet. App. 308, 312-313
(1991). As such, the Board believes that further development
in this case is necessary.
In the case at hand, the evidence of record pertaining to the
veteran’s period of service does not include any reference to
combat duty. Review of the record reflects that the
veteran's DD Form 214 contains no reference to any combat
citations or other awards or decorations appropriate to his
branch of service denoting participation in combat with the
enemy. However, the veteran claims that he was awarded a
Combat Action Ribbon (CAR) in connection with his service in
Vietnam, and claims that reference to it was somehow omitted
from his DD-214. The veteran’s service personnel records are
not of record, and would be useful in determining whether the
veteran was indeed awarded a CAR.
The veteran testified at his June 1997 personal hearing that
he was involved in several stressful situations during his
period of service in Vietnam, to which he attributes his
symptoms of PTSD. The RO has not attempted to obtain
verification of the occurrences which the veteran has
described because of the vagueness of the veteran’s
statements. This remand will provide the veteran with a
opportunity of providing more specific information concerning
his alleged stressors.
In November 1994, the veteran was evaluated by R.T. Parry,
Ph.D. in connection with his claim for Social Security
Administration benefits. Dr. Parry stated a diagnostic
impression (pursuant to DSM III) which included Axis I
diagnoses of PTSD, delayed onset; rule-out depressive
disorder, NOS (not otherwise specified); and alcohol abuse,
by history, in full remission. However, the veteran’s VA
medical treatment records do not contain a diagnosis of PTSD.
In October 1995, a VA psychiatrist concluded that the veteran
had no diagnosable psychiatric diagnosis at that time;
alcohol abuse was stated as an Axis I diagnosis.
The Board finds that additional development of the evidence
is needed. Therefore, this case is REMANDED to the RO for
the following actions:
1. The RO should obtain the veteran’s
service personnel records, and determine
whether he was awarded a Combat Action
Ribbon or any other combat-related award
or commendation.
2. The RO should contact the veteran
through his representative and inform him
that he may submit additional
corroborating evidence of his claimed
stressors. The veteran should be advised
that meaningful research of his stressors
will require him to provide the “who
what, where and when” of each stressor.
Further, the RO should inform the veteran
that he may submit evidence of such
stressors from military and nonmilitary
sources.
After receiving information pertaining to
stressors from the veteran, the RO should
attempt to verify any stressor
information provided by the veteran. All
documents, correspondence, reports or
statements obtained or generated as a
result of these inquiries should
thereafter be associated with the
veteran’s claims folder.
3. The RO should also request the
veteran to provide the names and
addresses of all health care providers
who have treated him for psychiatric
problems since 1995. The RO should
attempt to obtain any medical treatment
records which have not previously been
associated with the veteran’s claims
folder. The RO’s efforts to obtain these
records should be documented and any
evidence received in response to this
request should be associated with the
veteran’s claims folder.
4. If it is established that one or more
of the stressors alleged by the veteran
actually occurred to him during service,
the RO should schedule the veteran for a
comprehensive VA psychiatric examination.
This examination should be conducted by a
psychiatrist who has not previously
examined, evaluated or treated the
veteran. The claims folder must be
provided to the examiner for review prior
to the examination. The examiner should
determine the diagnosis of any currently
manifested psychiatric disorder(s). The
diagnosis must be based on examination
findings, all available medical records
and any special testing deemed
appropriate by the examiner. A
multiaxial evaluation based on the
current DSM-IV diagnostic criteria is
required. If a diagnosis of PTSD is
made, the specific stressor(s) to which
it is related must be set forth. The
report of the examination should be
associated with the veteran’s claims
folder.
5. Following completion of the
foregoing, the RO should review the
claims folder and ensure that all of the
foregoing development actions have been
conducted and completed in full. After
the development requested has been
completed to the extent possible, the RO
should readjudicate the claim of service
connection for PTSD, with consideration
given to all of the evidence of record,
including any evidence submitted by the
veteran and/or his representative and any
additional evidence obtained by the RO
pursuant to this remand. The
readjudication of the PTSD claim should
include relevant discussion and
consideration of the law and applicable
regulations.
If the benefit sought on appeal remains denied, the veteran
and his representative should be furnished with copies of a
supplemental statement of the case and given the opportunity
to respond thereto. Thereafter, the case should be returned
to the Board, if otherwise in order.
The veteran need take no action until otherwise notified, but
he and/or his representative may furnish additional evidence
and argument to the RO while the case is in remand status.
See Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
_______________________________
Barry F. Bohan
Member, Board of Veterans' Appeals
CONTINUED ON NEXT PAGE
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).
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